HKSAR v Han Jingguang (韓鏡光) & Ors [2025] 2 HKC 238, [2024] HKCA 941 (Tien Kei Rui)
Tien Kei Rui represented the 1st applicant in HKSAR v Han Jingguang (韓鏡光) & Ors [2025] 2 HKC 238, [2024] HKCA 941.
The three applicants and another person pleaded not guilty to a joint charge of robbery (contrary to the s 10 of the Theft Ordinance (Cap 210)) in the District Court. The prosecution case was that at one night, due to a traffic accident, they assaulted the prosecution witness whose properties were lost. The trial judge considered that the offence of common assault, as one of the five ‘alternative verdicts’ under s 32(1) and Schedule of the Theft Ordinance, was insufficient to reflect the seriousness of the witness’s injuries. After the case was closed, he wrote to counsel, inviting them to submit on whether s 51(2) of the Criminal Procedure Ordinance (Cap 221) applied, such that they should be convicted of assault occasioning actual bodily harm (contrary to s 39 of the Offences Against the Person Ordinance (Cap 212)). His verdict held that only that other person was guilty of robbery, while the three applicants were guilty only of assault occasioning actual bodily harm (see [2022] HKDC 419, [2022] HKCU 2082). The three applicants applied for leave to appeal against conviction, contending that the judge erred in law in applying s 51(2) of the Criminal Procedure Ordinance. The respondent conceded the trial judge erred, but the Court of Appeal should apply the proviso.
Held, unanimously, granting leave to appeal, allowing the appeals, and quashing the convictions and sentences:
Per Derek Pang JA
(1) The trial judge erred in only looking at the evidence without noting that the particulars of the charge (or the ‘constituent elements’) were material. The offence of robbery involved the ‘use of force’ and not ‘occasioning actual bodily harm’. ‘Assault occasioning actual bodily harm’ could not be a verdict alternative to ‘robbery’ pursuant to s 51(2) of the Criminal Procedure Ordinance (Cap 221). HKSAR v Chan Kam Ching [2022] 4 HKC 276, [2022] 1 HKLRD 647, (2022) 25 HKCFAR 48, [2022] HKCFA 7 applied (paras 10-12).
(2) Section 23(1) of the Criminal Procedure Ordinance stipulated that an order amending an indictment must be made without injustice, otherwise it was impermissible. As early as during opening submissions, the prosecution had made clear that there might be a need to rely on s 32(1) of the Theft Ordinance (Cap 210). An application to add the offence of ‘assault occasioning actual bodily harm’ as an alternative charge was the only way to protect the interests of the prosecution and to afford the defendants with adequate time to adjust their defence. The trial judge mentioned the applicability of s 51(2) of the Criminal Procedure Ordinance (Cap 221) Only after the parties had made closing submissions; he considered such development of the matter did not cause injustice to the defence. That was incorrect. Had the applicants known earlier that they would face conviction of a far more serious charge, they would be more likely to have elected to testify. Such a defect was fundamental, which could not be remedied even if the defence had made submissions on s 51(2). The trial judge should have but did not ask, such that the applicants lost the chance to re-open their cases. Since they had already exposed and confirmed their overall defence, even if the case was re-opened, their position would become rather restricted. This was the dilemma faced by the applicants. The convictions could not stand, and the proviso was inapplicable. Ewan Quayle Launder v HKSAR [2002] 1 HKC 279, [2002] 1 HKLRD 150, (2001) 4 HKCFAR 457 considered (paras 13-21).
[The above is excerpted from the headnote to the report in HKC.]
